Uzunlar & Uzunlar (No 2)
[2022] FedCFamC1F 485
•8 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Uzunlar & Uzunlar (No 2) [2022] FedCFamC1F 485
File number(s): SYC 7473 of 2016 Judgment of: REES J Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – PARENTING – Where both parents have exposed the children to psychological harm and are unable to prioritise the children’s welfare over their hostility toward one another – Expressed views of the children to live with their father – Where the eldest child has re-established a relationship with the mother but the youngest child is resistant – Mother poses no physical risk of harm to the children – Where no transition into the mother’s care could be effected without risk to the professional and trauma to the child – Orders for the children to live with their father and for the eldest child to spend alternate weekends with the mother – Order made under section 68P of the Family Law Act 1975 (Cth) (“the Act”) where parenting arrangements are inconsistent with an ADVO.
FAMILY LAW – PROPERTY – Marriage of nine years – Greater initial contribution by the husband – Assessment of equal contributions throughout the marriage – Material non-disclosure by the husband – No adjustments made pursuant to s 75(2) of the Act – Each party to receive 50 per cent of the net assets by way of property distribution.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 68P, 69ZW, 79(2), 75(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.03, 7.10, 7.11
Cases cited: Weir & Weir (1993) FLC 92-338 Division: Division 1 First Instance Number of paragraphs: 519 Date of hearing: 6, 7, 8, 9, 10, 14 & 15 June 2022 Place: Sydney Counsel for the Applicant: Mr Fowler Solicitor for the Applicant: Concordia Legal Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Zraika Partners Lawyers Counsel for the Independent Children's Lawyer: Ms Dalrymple Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 7473 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS UZUNLAR
Applicant
AND: MR UZUNLAR
Respondent
LEGAL AID NSW
Independent Children’s Lawyer
order made by:
REES J
DATE OF ORDER:
8 July 2022
The Court Orders:
1.That the father have sole parental responsibility for the children B born in 2009 and C born in 2011 (“the children”).
2.That the children live with the father.
3.That B spend time with the mother each alternate weekend, from Friday afternoon after school until Monday morning, commencing on Friday 22 July 2022 and to implement this order, the mother shall collect B from school on Friday and deliver her to school on Monday or Tuesday if Monday is a public holiday.
4.That B live with the mother for half of each school holiday period, in the absence of agreement, the first half, the mother to collect B from school on the last day of term and return her to the public entrance to the father’s residence at 6.00 pm on the day which is the mid-point of the holiday. For the purpose of this order, the school holidays commence on the afternoon of the last day of term and end on the morning of the first day that the children attend school in the next term.
5.That C spend time with the mother as follows:
(a)after three (3) months of family therapy; then for three (3) months, supervised visits for five (5) hours duration on each of Saturday and Sunday each fortnight as agreed and in the absence of agreement between 10.00 am and 3.00 pm on each of those days with an approved supervision agency as agreed between the parties, but failing agreement, then with the i-Supervise supervision agency;
(b)after the initial 3 month period of supervised visits, then for a period of three (3) months, unsupervised visits from 10.00 am to 6.00 pm on each of Saturday and Sunday each fortnight;
(c)thereafter unsupervised visits:
(i)during school term from after school Friday to 6.00 pm to Sunday each fortnight; and
(ii)during school holidays, from 6.00 pm Friday to 6.00 pm Sunday each fortnight.
(d)on C’s birthday from 4.00 pm to 7.00 pm with such time to be supervised for the 2023 year at an approved contact centre nominated by the father; and
(e)at such other times as agreed between the father and mother.
6.That the cost of supervised visits be shared equally between the parties.
7.That within 14 days of the date of these Orders, the parties are to contact DD Services on … for the purpose of family therapy and the parties shall thereafter attend on Mr BB, (‘the therapist’) to address the following:
(a)the children’s exposure to conflict;
(b)to repair and rebuild the relationship between the mother and the children; and
(c)such other matter the therapist deems appropriate.
8.That each parent will do all things necessary to comply with the reasonable requests of the family therapist including:
(a)attending upon the family therapist at such dates, times, duration and places as the family therapist directs for the purposes of family therapy; and
(b)when required by the family therapist, facilitate the children attending upon the family therapist including but not limited to encouraging the children to attend therapy at such times and places as may be requested by the therapist for the purposes of family therapy.
9.That each parent shall share equally the costs of all sessions of family therapy. Such costs are to be paid directly to the family therapist upon receipt of any invoice issued.
10.That the father enrol, attend and complete AA Services “Managing Strong Emotions Course” or such similar course.
11.That the father separately engage his own psychologist for a period of 6 months for individual therapeutic support.
12.That the mother and the children communicate with each other at any time using mobile telephone, email or any other electronic form of communication and the father is restrained from interfering with such communication.
13.That the mother is permitted to attend at the children’s school on any occasion when parents are invited to attend.
14.That the mother be entitled to receive from the schools attended by the children all notices and other communication usually sent to parents.
15.That each parent is authorised to provide a copy of these orders to any school attended by the children.
16.That the parents ensure that at all times each is informed of the residential address and contact phone number of the other.
17.That the father notify the mother of any appointment for the children with any medical practitioner, counsellor or therapist and authorise the practitioner to communicate with the mother and provide any information to her which she seeks.
18.That each parent is authorised to provide a copy of these orders and the reasons for judgment to Mr BB and to Ms CC.
19.That the appointment of the Independent Children’s Lawyer is extended for the period of one year from the date of these orders.
20.That within three months of the date of these orders, each parent pay to Legal Aid NSW the sum of $9,481.25 on account of the costs of the Independent Children’s Lawyer.
The Court Notes:
21.That these are orders to which the provisions of s 68P of the Family Law Act 1975 (Cth) apply.
22.That the provisions of Orders 3, 4, 5, 8, 12 and 13 are inconsistent with an Interim Apprehended Domestic Violence currently in force against the mother.
23.That the Registrar is requested to provide a copy of these orders and reasons to the Commissioner of the New South Wales Police and to the officer commanding Suburb EE Police Station and to the Registrar of the Suburb EE Local Court.
24.That the Independent Children’s Lawyer is requested, with the assistance of the Family Consultant, to meet with the children and explain to them the effect of these orders, such explanation to be in such terms and to the extent that the Family Consultant deems appropriate and in the children’s best interests.
The Court Orders:
25.That within three months of the date of these orders, the wife notify the husband in writing if she elects to retain the property at F Street, Suburb E (“F Street”) being the property in Folio Identifier…
26.That in the event that she so elects, the husband shall pay to the wife by way of property settlement, the sum of $377,556, such sum to be paid within 42 days of the date of the wife’s election.
27.That simultaneously with the payment referred to in Order 26, the wife shall do all things required to discharge the mortgage over F Street and the husband shall sign all documents and do all things required to transfer to the wife all his right title and interest in F Street.
28.That in the event that the husband does not pay the sum referred to in Order 26 to the wife by the due date, then the husband shall sell the property at FF Street, Suburb D (“Suburb D”) and, from the proceeds of sale, pay to the wife the sum of $377,556 together with interest on so much of that sum as is unpaid from the due date to the date of payment at the rate prescribed by the Rules.
29.That in the event that the wife does not elect to retain F Street, then the parties shall do all acts required sell F Street and Suburb D and to disburse the proceeds of those sales in the following manner and priority:
(a)To discharge any registered mortgage.
(b)To pay the agents’ commission and the costs of the conveyance.
(c)To pay to the wife half of the balance remaining, less the sum of $7,902.
(d)To pay the remainder to the husband.
30.That the parties are each restrained from dealing with F Street and Suburb D other than for the purpose of complying with these orders.
31.That the wife is solely entitled to the jewellery referred to in the balance sheet.
32.That the husband do all things required to cause the Motor Vehicle 1 driven by the wife to be registered in her name.
33.That the wife indemnify the husband in relation to the debt of $20,000 owed to her brother for school fees.
34.That the husband is solely responsible to pay any land tax assessed against Suburb D.
35.That the husband is solely responsible to pay any capital gains tax assessed against him consequent upon the sale of the property at F Street, Suburb E.
36.That other than as provided in these orders, each party shall retain any property in his or her possession.
37.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these parenting Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Uzunlar & Uzunlar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Uzunlar (“the wife”) and Mr Uzunlar (“the husband”) married and commenced cohabitation in 2007 and separated in late 2016.
They are the parents of two children, B born in 2009 and C born in 2011 (“the children”).
This matter was listed for hearing commencing on 24 May 2021. For reasons which will become clear, those dates had to be vacated.
Until May 2021, the children lived with their mother and spent regular time with their father. On 6 May 2021, in circumstances which will be more fully discussed later in these reasons, the husband retained the children and they have since lived with him and B has spent supervised time with the wife while the family, for a time, engaged, unsuccessfully, in family therapy. C has spent no time with his mother since May 2021 and his only contact with her has been brief and in circumstances which will be fully explained later in these reasons.
The husband has re-partnered with Ms AK who has an adult son who is married with children. The wife has not re-partnered.
These proceedings involve both the parenting arrangements for their children and the distribution of their property.
The Trial
The wife relied on two affidavits sworn by herself on 12 February 2021 and 22 April 2022; a Financial Statement filed on 26 May 2022; an affidavit by her brother, Mr K, sworn 25 September 2020 and an affidavit of a friend, Ms AM sworn 28 September 2020. Mr K and Ms AM were not required for cross-examination.
The husband relied on two affidavits sworn by him on 3 December 2020 and 27 April 2022, a Financial Statement filed on 31 May 2022 and an affidavit of his partner, Ms AK sworn 23 September 2020. He also relied on an affidavit by Ms T, a therapist he engaged for the children, sworn 19 August 2021; affidavits sworn by four of his five siblings; an affidavit of Mr W, the husband’s nephew, sworn 25 September 2020; an affidavit of Mr AD, a friend, sworn on 24 September 2020; an affidavit of Mr AG, a friend, sworn on 23 September 2020. Only the husband, Mr W and Ms T were required for cross-examination.
The husband sought also to rely on an affidavit of Mr AH, a valuer and initially relied upon an affidavit of a translator, Mr OO.
Mr AH’s evidence was objected to as was that of Mr OO.
In relation to Mr AH, in the course of the hearing, an application was made on behalf of the husband to rely on the evidence of Mr AH, an expert who was not an agreed single expert. Mr AH, had, on the instructions of the husband, provided historical valuations at various dates for four properties.
The letter of instruction to Mr AH, dated 3 September 2020, was written by the husband personally, not by his solicitor. Mr AH was selected by the husband personally.
No attempt was made to seek the wife’s co-operation with the appointment of a single expert valuer and the wife was not informed that the husband had instructed Mr AH.
On 5 May 2021, the solicitors for the husband wrote to the solicitors for the wife, asking, inter alia, whether the wife agreed that Mr AH’s historic valuations could be relied upon.
On 16 May 2021, the wife’s solicitors responded, indicating that she did not agree.
Thereafter there was no further discussion about the appointment of a single expert to perform those historic valuations and no application was made either for the appointment of a single expert or for leave to rely on Mr AH’s valuations until the second day of the hearing before me.
After hearing submissions, I refused the application and indicated that reasons would be provided.
These are the reasons.
The Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”) make provision for the calling of expert evidence. Significantly, r 7.03 of the Rules provides:
7.03 Appointment of single expert witness by parties jointly
(1) If the parties agree that expert evidence may help to resolve a substantial issue in a proceeding, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue.
…
(2) A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
(3) A party must not communicate unilaterally with a single expert witness, except as permitted by these Rules.
(4) Any communication between a party and a single expert witness must, at the same time, also be provided to all other parties engaging that single expert witness, except as permitted by these Rules.
If a party seeks permission to rely on an expert, other than a single expert, then the provisions of rr 7.10 and 7.11 of the Rules apply:
7.10 Permission for expert’s reports and evidence
(1) A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, other than a single expert witness.
(2) An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission.
7.11 Application for permission for expert witness
(1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Proceeding.
(2) The affidavit filed with the application must state the following:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness’s evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f) the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue;
(g) whether there is any previous connection between the expert witness and the party.
(3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account the following:
(a) the purpose of this Part (see rule 7.02);
(b) the impact of the appointment of an expert witness on the costs of the proceeding;
(c) the likelihood of the appointment expediting or delaying the proceeding;
(d) the complexity of the issues in the proceeding;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only;
(f) whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the proceeding.
(4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
…
The wife has had no opportunity to seek advice upon which to challenge those valuations. Having not been served with any application to rely upon the valuations before the hearing, she was entitled to assume that they would not be relied upon.
The husband advances no basis upon which compliance with the Rules should be abandoned but expedience and, as the Rules make clear, that is insufficient.
I propose to deal firstly with the parenting matters.
Parenting
In this portion of the reasons for judgment, the parents are referred to as “the mother” and “the father”.
It is uncontested that the children lived primarily in the care of the mother after the separation of their parents and that they spent time with their father.
The hostility between the parents has been evident from the commencement of these proceedings but, as is common, there is little independent evidence to corroborate the allegations that each parent makes against the other. In those circumstances, evidence of the observations of objective third parties is more likely to be of assistance than that of the parents who each have a significant interest in having her or his versions of events accepted.
Evidence of the Family Consultant
Since the proceedings commenced in 2017, there have been four reports prepared. Thus the Court has the advantage of an objective longitudinal assessment of this family.
When the Child Responsive Program Memorandum was prepared after interviews with the parents and the children on 5 April 2017, only months after the separation, the issues were noted to be:
•Parental responsibility
•With whom the children should live
•How much time the children should spend with the parent they are not living with
•Mother’s allegations of family violence
•Father’s allegations that the mother has mental health problems
•Mutual allegations about risk of overseas abduction to [Country G]
•Unresolved issues arising from the parents’ recent separation
•Dispute between the parents about the level of involvement [the father] had with the children prior to separation
•Lack of trust between the parents and belief that the other parent is somehow coaching/brainwashing the children against them and undermining their parenting role and relationship with the children
Each parent was seeking sole parental responsibility and for the children to live with her or him.
The children were then living primarily in the care of their mother and both children seemed to be content with the arrangements.
On 10 September 2017, the mother consulted a general practitioner requesting a referral to a psychologist for the children. The doctor noted:
separation from her husband getting divorse, would like to minimise the psychological stress on her family.
her son gets anxious when his father comes to take him, he wants to stay with his mother.
relaxation teciques discussed.
(As per the original)
Although the mother denied that she had sought a referral for the children I accept that she did. In cross-examination the mother said that she took the children with her to see a psychologist on one occasion only but the referral was for herself. The mother did not tell the father that she had taken the children to see a psychologist.
A Family Report was prepared dated 17 November 2017. At that time, B told the Family Consultant that she was content with the current arrangement but was aware that her father would like them to spend more time with him. B said that she would find that confusing and that she would not be comfortable spending alternate weeks in the father’s household. B did not want to spend a week without seeing her mother.
C told the Family Consultant that he wanted to spend more time with his mother and that a week away from her in the holidays was too much.
The Family Consultant stated that the children had a meaningful relationship with both parents and recommended that the parents share parental responsibility; that the children live with their mother and that they spend five nights each fortnight with their father. She stated, presciently:
49.…It seems that [the mother] wants to have power and control over parenting decisions to the exclusion of [the father] and the children to live with her for the vast majority of the time. She seems to believe that, if the children were to spend substantial time with their father, it would diminish her parental role. [The mother] seems to have great difficulty acknowledging the children’s relationships with their father or any capacity of [the father] to provide appropriate care for the children.
50.It seems that [the father] wants to be involved in parenting decisions and the children to live at least as much of the time with him as with their mother. It is noted that [the father] appears to have shifted from his initial proposal for the children to live with him, but he seems to believe that, if the children were to spend less than half of their time with him, it would diminish his parental role. [The father] seems to have great difficulty contemplating the possibility that the children may feel more comfortable with and close to their mother at this stage in their lives.
The Family Consultant recommended that the children spend five nights each fortnight with their father and half of each school holiday period. She also recommended that both parents attend post separation parenting courses and participate in family dispute resolution.
Unfortunately for the children, neither parent was prepared to accept those recommendations as to the children’s time with the father.
A further report was prepared dated 28 July 2020. B was then ten years old and C was nine years old. By this time, the father’s relationship with Ms AK had commenced although they were not living together.
The father deposed that, before the interviews with the Family Consultant, B told him that her mother had been “pressuring” her. He deposed that B said:
298.…I don’t think mum will be okay because she is pressuring me to say to keep the current arrangement as it is but I really want to spend equal time with both of you. [C] wants the same thing. I know mum will be angry if I say that to the family consultant and I don’t know what she would do.
The father deposed that B also said:
298. …I am scared of mum. I am not confident enough to deal with mum’s anger.
The mother proposed that the children spend four nights each fortnight with the father and that she have sole parental responsibility for them. She proposed that the children be permitted to travel overseas with her to any country, including Country G, but that they only be permitted to travel with the father to specified countries, excluding Country G and Country AL which is Ms AK’s country of origin.
The father proposed that the parents share parental responsibility and that the children live with each parent on a week about basis.
The Family Consultant identified the issues:
18. Issues identified by the parents during assessment:
•[The mother] considers that she is the children’s primary carer and that [the father] has significant shortcomings in his parenting,
•[The father] considers that [the mother] is attempting to alienate him from the children.
19. Issues identified by the Family Consultant during assessment:
•The lack of any real progress toward a more effective co-parenting relationship since the release of the initial Family Report some two and a half years ago,
•The ongoing battle between the parents about the importance of each of their parenting roles, with each parent feeling that the other parent is unjustifiably promoting themselves and undermining the other’s role.
The Family Consultant stated:
43.There appears to be a limited co-parenting relationship between [the father] and [the mother]. [The mother] seems to perceive that [the father] has no genuine interest in the more routine parenting of the children. [The father] seems to perceive that [the mother] largely excludes him from parenting the children.
Both children spoke positively about Ms AK and the Family Consultant reported a happy and comfortable interaction between her and the children.
B told the Family Consultant that she wanted the term time arrangements to stay as they are but that she would like to be able to call her father when she wants to call, rather than at set times.
Of her interview with C, the Family Consultant reported:
52.[C] (aged 9 years 5 months) presented as reasonably confident to be interviewed. [C] described the term time parenting arrangement and indicated that his mother wants the current arrangement to remain in place, whilst his father wants him to “do whatever I want”. He said that he wants to spend “one week with Dad, one week with Mum”. [C said that he came up with this option and that it is “equal”. He then said that his father did not tell him to do it (live equally between his parents), but that his father asked him if he wanted to do it, whilst his mother was telling him to “keep as is”. [C] was asked about the possibility of him feeling caught in the middle between his parents’ different proposals, but he was adamant that his expressed views are what “I want”. [C] said that spending a week with each parent “makes it feel equal” and also that it would mean “more time” with both his mother and father. He was able to clarify that currently he spends 10 nights with his mother and four nights with his father per fortnight, but he did not seem to grasp the concept of an equal time arrangement resulting in him spending less time with his mother than he does currently. He spoke about spending time with cousins on both sides of his family and said that “I don’t want to leave Mum”, but that “I just want it equal”.
The Family Consultant reported:
55.[C] was asked if either parent asked him any questions or made any comments to him after the last time that he spoke with the Family Consultant. In response, he said that his mother banned him from his iPad because he did not say something that he forgot, but he could not remember what it was he was meant to say during his previous interview. When asked if he had any current concerns about what his parents might say after his interview, [C] said “right now, I want week on week off, she [his mother] doesn’t”. He said that his mother asked him if he wants to live in an equal time arrangement and that, when he told her he does, she said “imagine one week without me”. [C] said that, if he were to spend a week away from his mother, he would “miss her a lot” and “worry what happens to her”, but that this would be the same when he is not with his father, as he misses his father, worries about him, and wants to see him. [C] indicated that he would like to be able to talk to either parent on the phone whilst with the other parent, but that he does not ask to do so because he “forget[s]”.
C told the Family Consultant that he would like his parents to “get along better”.
The Family Consultant expressed concern about the ongoing dispute affecting the ability of each parent to focus on the children and she reported:
64.…Reports of each parent talking to the children about the proposed parenting arrangements (with consequent emotional pressure), and particularly the allegations that [the mother] has somehow punished the children in response to them indicating or displaying their affection for their father, are worrying. [B] and [C] love both their parents, and as long as their parents remain in dispute, they cannot please them both with regard to their views about parenting arrangements. This may limit the weight that can be placed on their expressed views, as it seems that the children are in a difficult situation and may not be able to freely consider what they think might be best for them.
The Family Consultant stated:
65.[B’s] views remained fairly consistent with the views she expressed previously in terms of the time that she is to spend with each parent, although her presentation was somewhat different. For both assessments, [B] indicated that she wants the arrangements during school term to remain as they are, although she now reports wanting the holiday time to be week about. When she was younger, [B] tended to refer to missing her mother and not being comfortable with spending more time with her father (noting that she did not want to spend less time with her father than what she was). Currently, [B] seems to be considering the practicalities of her daily routines, suggesting that, during the week, it is not really about spending time with either parent. [B’s] descriptions of her relationships with her parents suggest that she is well able to have her needs met by either parent. There was some discrepancy between each parent’s narrative and [B’s] narrative regarding her attendance at gymnastics, and whether or not there is some issue about [the father] taking her to gymnastics during the time she spends with him. [B] certainly tried to downplay any issue if one exists. As noted above, [B] may be influenced by her mother’s stance that the current arrangements should continue, particularly if her mother gives her overt or subtle messages that it is not acceptable for her to want more time with her father. However, [B] is 10 years old and her consistent expressed view is that the term time arrangements remain as they are, and this can be given some weight by the Court. [B’s] desire for week about during school holidays, plus the opportunity to travel overseas for longer periods with each parent, appears to indicate her desire for uninterrupted holiday time and greater opportunities for travel and her views can definitely be given weight. Overall, it seems that [B] has been able to express that she has positive relationships with both her parents, and her father’s new partner, and that she is largely content with the current parenting arrangements – which is a psychologically healthy mindset, particularly when faced with potential influence from one or both parents.
66.[C’s] views seem to have changed significantly since he was last interviewed. When he was six years old, [C ]did not seem to fully comprehend the concept of different time arrangements, but gave a clear message that his preference was to be with his mother. This was despite his observed behaviour with his father indicating a comfortable, close and warm relationship between them. During his recent interview, [C] was fairly adamant that he wants to live equally between his parents and he seemed to be aware that this is what his father wants and not what his mother wants. It is possible that [C] was unduly influenced by his mother at the time of the previous interview and unduly influenced by his father at the time of his recent interview, which would not be psychologically healthy. It is also possible that, with time and maturity, [C’s] relationships with his parents have changed and he has moved from being more dependent on his mother to finding that his needs can be met by either of his parents and he enjoys spending time with each of them. The view of [C] that he is comfortable and happy with each parent can be given substantial weight. His view regarding equal time can be given some weight, but with caution, particularly given that he again seemed not to fully comprehend the outcome of spending equal time with each parent, that is, he would spend a reduced amount of time with his mother. [C] may be overly influenced by the concept of “equal” as this may feel fair and just, without a more nuanced understanding of what that would mean for his daily routine and relationships.
The Events of May 2021
The matter had been listed for hearing before me for four days commencing on 24 May 2021.
The father deposed that in about March 2021, B started to tell him that she wasn’t getting on with her mother and wanted to live with her father.
In April 2021, the father deposed, B told him she would like to see a therapist. The father deposed that B said to him that she had friends at school who have seen a therapist who helped them and that she had asked her mother if she could see a therapist. B said “but mum said I don’t need one and if I really wanted to see one, she will organise a therapist for after May this year”. The trial was to commence on 24 May.
The father, without any discussion with the mother, organised two separate appointments for B with two different therapists. B saw Dr Y on 30 April 2021. Her notes of the interview are in evidence.
Dr Y noted that B “asked mum for help but denied” and “asked for help from dad”.
Dr Y noted B said:
•I got a lot of suicidal thoughts
•School is hard
•…
•Studies is hard
•Can’t focus
•…
•Suicidal thoughts
•Held my breath till I can’t breathe a week ago [illegible] home life with mum is hard.
•Once I went to court & she made me say something – for me to stay full time, [illegible] to keep peace.
•Inside I want to spend 50% with both parents
(As per the original)
B saw Ms CC on Wednesday 5 May 2021, when she was in the care of the father pursuant to orders. Again, the mother was not informed or consulted. The notes of Ms CC in relation to that interview are not in evidence. The father must have understood the importance of Ms CC’s notes because he was ordered, on 18 May 2021, to file an affidavit by Ms CC concerning her recent interaction with B. I accept his evidence in cross-examination that Ms CC refused to provide an affidavit but in the absence of Ms CC’s notes, the only evidence of what was said by B to Ms CC comes from the father who, it would seem, was present for a short period while B was speaking to Ms CC because the father deposed that, while he and B were with Ms CC, B disclosed “that she was having suicidal thoughts and was self-harming”. That is the father’s interpretation of what was said. What B actually said to Ms CC is not known.
After the session with Ms CC, the father said to B “…If you want to stay with me, you can stay with me as long as you like”. B said “Finally! I can’t live with her anymore, this is hurting me so bad”.
The father deposed that, when they arrived home, he and B spoke with C and told him that B would not be returning to the mother’s care. C said:
…Mum will full rage at me if [B] doesn’t come home, she will never let me come back to see you or [B]. I am too scared to go without her.
The following day, 6 May 2021, C said to the father that he did not want to go back to his mother.
The father, again without contacting or notifying the mother, arranged for a social worker, Ms T, to see the children at his home that afternoon. He did not take the children to school.
At some time, the children’s 18 year old cousin Ms AN arrived at the unit.
The father sent a text message to the mother, telling her that he would not be returning the children to her; that B had already seen a psychologist (I assume Ms CC), that B “made reference to suicidal thoughts when she stays with you and that she has even harmed herself”; that he had arranged for the children to speak to a counsellor and that he would not send the children to school until the mother gave an undertaking not to collect them from school and to avoid interacting with the children until they were “ready”.
When the mother received the text, she attempted to telephone the father but he did not answer her call “as I knew she would yell and scream at me”. The mother contacted the police.
Ms T conducted an extensive interview with the children at 4.00 pm that afternoon. She deposed that “My session with the children finished at approximately 6.00 pm”. Ms T took a transcript, and has sworn an affidavit setting out, inter alia, what the children said to her and what she said to them.
Ms T’s account of her conversation with the children is some ten pages long. She spoke to them both together. Because it is important to understand the nature of the children’s complaints about their mother I will set out the tenor of the interview.
B told Ms T:
mum yells at me for little reasons
my heart hurts
if we say anything positive about our Dad, she gets angry, only if I say something
Asked “Does your mum hit you?” B said “No. She tries but I back away”. [B] said:
Its not just physical, its verbal, she says things like your dad doesn’t love you, and mum’s lawyer will say to her “this is bad she’s losing court” and she’ll lose it at us after, we love our dad. It’s the way she acts…
(As per the original)
B said that she has “an on and off good relationship with her [sic] mum” and that her mother yells and gets angry maybe two days a week, maybe more. She also said that her mother says bad things about her father “about two days a week”. B said that she doesn’t talk to her father on Skype because she is frightened that her mother will get angry if she finds out.
B said “I love my mum. I just don’t like it when she gets angry. I want to live full time with my dad as I get scared with mum”.
B said:
… I self-harmed last year, I have suicidal thoughts. I went to a psychologist one time and she told me to do a breathing exercise, another psychologist just told me to stop thinking about it and it will go away… I want to die. I scratched myself on my wrist last year. I feel like I want to ignore it so I can stop, so I can cope.
B said that last week she had tried holding her breath but that she ignored it and talked herself out of it. She said:
When I have time to think more, I scratch, mostly with my hand… I bit my nails a lot and get anxious and nervous, like when trying to pass tests at school.
B said that she was “super scared” and that “Mum’s head will explode right now because we’re not there.”
B told Ms T that they saw a Family Consultant and:
I said I wanted more time with mum because mum told me and [C] what to say. I was scared of mum, I said what she wanted me to say. She yells at me, throws things, she can escalate quickly if we mention dad…
B said that after the interviews for the 2020 Family report “she doesn’t throw things at me any more just at C, she knows C won’t tell dad but I will”. She said “…Mum has more power. Dad has no power.”
C said:
If we say we love dad, she says don’t do it
She is raising us to hate our dad
C said his mother yells at him every day and throws things at him every day. Asked if his mother hits him, he said “No. She throws things at me though”. C said:
She shows us all the bills, in her loud voice, yells, I pay all the bills, why are you treating me like that, that’s what she said.
C said “I talk to dad about three times a week on Skype. When mum gets angry, it makes you feel bad about yourself”.
The following passage of the interview is reproduced in full:
C: Mum has a bad temper, she throws things
[Ms T]: What kind of things does your mum throw?
C: If something is near her she’ll throw it.
[Ms T]: Where does she throw it?
C: At us, I dodge it, but sometimes it hits me
B: I dodge stuff too. She threw a plate at [C] but she missed.
C: I have a really big cut up here (pointed to right eyebrow and forehead) once.
[Ms T]: Oh really? Can you tell me what happened?
C: I remember it hurt (thinking ‘hmmm’) it was something white. I can’t remember what it was but it was white.
[Ms T]:Was there blood?
C then hid under his shirt, and said “I can’t remember”.
[Ms T]: Can you remember when this happened?
C: Not long ago.
Ms T told the police “Their mum apparently throws things at them regularly and on at least one occasion hit [C] and cut him above the eye”. I do not accept that is what the children said.
The children both told Ms T that they do not celebrate Christmas in the mother’s home. The father in cross-examination conceded that they do celebrate Christmas at the mother’s home.
As Ms T was leaving the father’s unit, the police arrived and spoke at some length with Ms T and with the father. They asked to speak to the children.
Ms T deposed:
I went back to the unit and prepared the children for the police presence, telling them that police were just wanting to ask them some questions, and not to be afraid, their cousin and I would be present to support them. The children were frightened, [B] sat next to me and [C] sat next to his cousin.
The police spoke to the children without switching on their body recording devices. They then asked to interview the children the following day at the police station.
Ms T asked the police to apply for an interim Apprehended Domestic Violence Order (“ADVO”) against the mother for the protection of the children. There is no evidence that the father opposed that course or that he asked the police not to take any action against the mother. There is no evidence that the father asked the police not to interview the children.
The police then spoke to the children again with their recording devices switched on. During those interviews the children were both present together and the father, Ms T, their cousin and the two police officers were all present. The transcript of the interview is in evidence.
C told the interviewer that his mother gets angry easily if he says something good about his father’s family and when she is angry she swears at him and tries to convince him to feel sorry for her. He said:
…she threw a bag at me once, but like, it didn’t really hurt because I kind of dodged it but like, dodging an item over and over again is like, not good.
Asked if the mother threw things a lot, C said, “Not a lot, but like, maybe, once a month or something she gets angry, it depends”. C said that he dodges when the mother throws something. Asked if he had ever been hurt or got any little cuts or bruises, C said “No, I’m not sure”. He said he couldn’t remember the last time his mother threw something.
B told the interviewer that her mother yells at her “and stuff like that”. She said “Mum doesn’t throw anything at me though” and that her mother had never thrown anything at her. She remembered the mother throwing something at C “one time”.
When asked if she was scared of her mother, B said “Sort of” and that she was scared her mother would “yell at me.”
B said that she had not held her breath “lately”.
The children were formally interviewed by police on 7 May 2021. Ms T was present as was the father. Ms T noted that B was distressed but C was “entertaining everyone with jokes and stories”.
The statements taken by the police are in evidence.
C said that his mother gets angry with him and yells and will throw something if he doesn’t listen to her and that she says bad things about his father which makes him feel sad. He said that his mother has been behaving that way for “the whole of the divorce”. C said that if he says something good about his father’s family his mother gets angry.
Asked about his allegation that his mother throws things, C said that it happened every now and then and that he can’t remember when it last happened but it was a plastic bag with stuff inside and that he couldn’t remember if it hit him. He said she had thrown other things but he couldn’t remember what they were. Asked whether he had been hit by a plate thrown by his mother C said he didn’t really remember.
C said that his mother “kept telling me what to say” to the Family Consultant and “I like told the wrong thing and she got really mad at me… she got really angry and started swearing and yelling and throw[ing] things around the house”. C said that his mother wanted him to tell the Family Consultant that the arrangements should stay as they were because “she would have more power… how do I explain it, like you listen to me and don’t listen to him”.
Asked “What does your mum do when she’s really mad?” C said “I don’t know really I never, like I have experienced it but this was when I was like 5 or 6 years old”.
C said that he feels his mother loves him but she gets angry “really easily because she thinks everything has to go her way”.
B, when asked the reason she came to the police station, said:
…last night… me and my brother made the move that we wanted to live with my dad and… I told my dad all the reasons why I don’t wanna be with my mum. She yells and screams at me and she threw a bag at my brother once. And she gets angry at me for little reasons and… every time I tell her “stop, stop, stop”, she says “What do you mean? I’m not yelling at you”…
(As per the original)
B said that she had an argument with her mother about a sum of money that her father had given her to take to the school camp and that her mother wanted her to use the $40 she had left to buy her lunch and B wanted to give the money back to her father. B said that her mother:
…was storming upstairs and she showed me all my dads money on my iPad like she screen shotted all these things in court…I really don’t remember what they were but they were all money accounts….
(As per the original)
B said that because of the argument, she had to give all her electronics to her mother and go to bed early and that she asked her maternal grandfather, who was in the house, to call her father to come and pick her up.
Asked “so why are you scared of your mum?” B said “I’m scared she is going to yell at me, throw something at me”. The officer asked whether the mother had ever thrown anything at B and B said “Well she was about to.” She said that on the night of the fight about the $40 “I thought she was going to slap me”.
B said that her mother had not thrown anything at her but that she had thrown a bag at C “a few times” and hit him with her hand “if he’s being really annoying…”.
B said she feels safe at her mother’s house but also scared that her mother will get angry.
B said that her mother had coached her to tell the Family Consultant that she wanted to spend four days with her father and ten days with her mother and that, although she wanted a different arrangement, she “told the lady and told her that my brother didn’t. My mum got real angry”.
B said “Last year I wanted like half, half. But now I want full time with my dad”.
Asked about holding her breath, B said:
I do that, like I get these… thoughts…when I’m with my mum to kill yourself and stuff. And then I hold my breath or I would scratch my wrists, I don’t, I used to do it but not anymore cos I know that it’s just playing up and it’s not an actual real thing so…I don’t scratch myself anymore but I sometimes hold my breath…
(As per the original)
B said she “gets voices” telling her to hold her breath and “then when I can’t handle it I just do it and then it goes away”. She said that she had not told her mother about holding her breath and that she had not told her father about the scratching. She was “pretty sure” she had told her dad about holding her breath.
By this time, the children had been subjected to a number of interviews on the subject of their complaints about their mother:
·B was interviewed by Dr Y on 30 April 2021.
·B was interviewed by Ms CC, for some of the time in the presence of the father, on 5 May 2021.
·Both children were interviewed by Ms T for two hours on 6 May 2021.
·Both children were interviewed by police on 6 May 2021 in the presence of each other, the father, Ms T, their cousin and two police officers.
·Each child was separately interviewed at the police station on 7 May 2021.
At 7.12 pm on 7 May 2021 a Provisional ADVO was issued against the mother. The terms of the order, which is still in force, not only restrain the mother from assaulting, threatening, stalking, harassing or intimidating the children but also forbid her from approaching them or contacting them, other than through a lawyer or in accordance with an order of a court. There has not yet been a final hearing of the application for the ADVO.
Because of the existing ADVO, the provisions of s 68P of the Family Law Act 1975 (Cth) (“the Act”) apply to any order which is made in these proceedings in terms which are inconsistent with the ADVO. In so far as s 68P(2)(d) of the Act requires that there be a detailed explanation of the orders to the parents, including:
(i) the purpose of the order or injunction; and
(ii) the obligations created by the order or injunction, including how the contact that it provides for is to take place; and
(iii) the consequences that may follow if a person fails to comply with the order or injuction; and
(iv) the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and
(v) the circumstances in which a person may apply for variation or revocation of the order or injunction.
These reasons provide that explanation.
The Family Consultant has agreed to meet with the children and provide them with an explanation of the orders which will be made.
The police officers told the father that they had called an ambulance to take B to R Hospital for examination and assessment. The ambulance arrived at about 7.30 pm and the father accompanied B to the hospital. C stayed with the father’s sister.
Although the discharge summary was tendered, the hospital notes were not. It is not possible to tell, from the discharge summary, what information was given by B and what was said by the father. The summary states “[B] denies physical abuse by mum”. B denied any suicidal or self-harm ideation and it was noted that there was no evidence of self-harm “over peripheries”. It is not clear who told the hospital staff “She has previously scratched her arms until the areas bleed, threatened to hold her breath until she faints”. That is not what B told either Ms T or the police.
She was discharged in the father’s care.
The father deposed that B asked him to take them to AQ City to visit his sister and her family.
Sunday 9 May 2021 was Mothers’ Day. The father deposed that he offered the children the opportunity to speak by telephone to their mother but they refused.
On 10 May 2021, the father and the children flew to AQ City. The father gave a copy of the provisional ADVO to the children’s headmaster.
The ADVO was returnable on 13 May 2021 and was adjourned.
The matter came before me on 18 May 2021. An Independent Children’s Lawyer (“ICL”) was appointed for the children and orders were made for an updated Family Report to be prepared. Further, the following orders were made:
10.That each party file and serve an affidavit relating to the recent events concerning the children, by 4.00 pm 15 June 2021.
11.That the father file and serve an affidavit of [Dr Y], [Ms CC] and [Ms T], subject to those persons agreement to sign an affidavit, concerning their recent interactions with the children, by 4.00 pm 15 June 2021.
12.That the father ensure that the children return to, and thereafter attend at, their school at [X School] in [Suburb I] on all days they are required to attend. The Court notes that the mother agrees, on a without admissions basis, not to attend at the children’s school or contact the children at their school pending further orders.
13. That the father be restrained from taking the children to any psychologist, social worker or other mental health or social worker other than as may be recommended by [Dr Z], or if he is unavailable, another general practitioner at [AP Clinic Suburb I].
14.That all current orders in relation to parenting arrangements for the children [B] born in 2009 and [C] born in 2011 are suspended except for the order that each of the parents have equal shared parental responsibility for the children.
(As per the original)
The hearing commencing on 24 May 2021 was vacated.
Also on 18 May 2021, in the Local Court, the provisional ADVO was extended upon the mother’s undertaking not to attend at the children’s school. Those proceedings are listed for hearing in February 2023 and the children are required to give evidence. They have been served with subpoenas by the police. The police have been told that the mother does not require them for cross-examination but the mother understands that the police intend to lead further evidence from the children. The father is also listed in the police brief as a witness against the mother.
In cross-examination, the father said that he had not approached the police and asked them to withdraw the proceedings against the mother and did not intend to do so. He said that he wanted the prosecution to proceed to conclusion, even if that required the children to give evidence against her.
Also on 18 May 2021, the mother met with the children’s school principal, having first confirmed that the children were not at school and having been advised by her lawyers that she was legally permitted to do so. She deposed that she wanted to explain that she was defending the ADVO application and that she wanted to continue to be involved with the children’s schooling.
The father contacted the police and complained that the mother had breached the provisional ADVO by going to the school. On 29 May 2021, the mother was arrested and placed in the police van. The police then spoke to the mother’s solicitor and to her barrister who confirmed they had advised her that she could go to the school to speak with the principal because the children weren’t at school. The mother was released without charge.
The children returned to school on 19 May 2021. Also on 19 May 2021, the father attended at the AP Clinic and sought a referral to counselling for the children. The children were not present. Any information given to the doctor was given by the father, and included the discharge summary from R Hospital and a copy of the orders made on 18 May 2021. Dr AR, without speaking to the children or having any contact with them, provided a recommendation in the following terms:
…[B] has been receiving counselling from a psychologist [Ms CC] in [Suburb AY]. [The father] informed that [B] was comfortable in receiving counselling from [Ms CC] and seeks to continue it. On 06/05/2021 [B] was taken to [R Hospital] due to expressing suicidal ideation… and discharged from hospital the next day. [The father] has shown me the discharge letter from the hospital today. Due to this history and due to anticipated ongoing stressors related to the current divorce process and ongoing court issues, it is recommended for [B] to continue counselling with [Ms CC]. [C] is similarly receiving counselling from [Ms T], a clinical social worker. [The father] informed that [C ]was comfortable in receiving counselling from [Ms T] and seeks to continue it. On that basis it is recommended for [C] to continue receiving counselling too.
(As per the original)
A copy of Dr AR’s letter was sent to the solicitors for the mother who rejected the recommendation. The mother instructed that Dr AR was a longstanding friend of the father, that there were orders in place for equal shared parental responsibility and that the father should not seek counselling for the children without the mother’s consent. The mother queried the independence of the chosen counsellors and asked that the father take the children to see Dr Z. The solicitors advised that they would write to Ms T and Ms CC telling them that the mother did not consent to their seeing the children.
On 25 May 2021, one of the mother’s friends spoke to B after school. The father asked B what had been said. He deposed that B said:
56.…She told me that mum had sent her to talk to me and to give me a kiss from her, and she asked me, why did you leave your mum, she loves you very much and missed you. Give me a kiss so I can send that kiss to your mum. You should go back to your mum…
The father reported that contact to the police.
On 26 May 2021, the father took the children to see Dr Z who prepared referral letters for B to Ms CC and for C to Ms T.
The father deposed that on Sunday 6 June 2021, he and B went to a shopping centre and he saw the maternal grandmother in a store. The father deposed:
59.I informed [B] that her grandmother… was in the store and [B] immediately hid amongst the shelving so as not to be seen by her. [The grandmother] noticed me and gave me a stern look, but she did not see [B] there…
The father deposed that B wanted to go home but he persuaded her to stay and finish their shopping. As they were entering the supermarket, the grandmother, who was accompanied by a number of B’s cousins, saw B and called out to her. They finished their shopping. As they left the supermarket, the grandmother called out “[B], I love you”. The father interpreted this incident as stalking.
On 8 June 2021, B told the father that her maternal grandmother had been to the school and asked another child to find her and C. They spoke through the fence. The grandmother did not enter the school grounds. The mother deposed that the grandmother was walking past the school and she heard B calling to her from the school grounds and that they hugged and kissed.
The father reported that contact to the police.
On 15 June 2021, B told her father that another child who is B’s friend and whose mother is a friend of the mother, told her that she had been at the mother’s house with her mother the previous weekend. B’s friend told B that B’s mother was upset and crying and that “your mum said she was suffering from depression because you left her”.
The father interpreted this conversation as an attempt by the mother to contact B and pass on a message.
On 20 July 2021, during a period when COVID restrictions confined residents to exercise within five kilometres of their home, the mother and a friend went for a walk. They walked past the father’s office in the main shopping street of Suburb E. The father and his sister left the office as they walked by and he saw the mother. The children were not present. The father deposed:
240.I then drove down [AT Street] where I turned around and drove back down [AU Street] so that I passed them. I did this to get dashcam footage of them and to confirm what I had seen.
241.Due to the ADVO, [the mother] is prohibited from stalking the children or anyone in a domestic relationship with the children, which includes myself…
The father contacted the police, alleging that the mother was stalking and harassing him. The mother was interviewed by police.
On 3 September 2021, the mother filed an Application in a Proceeding seeking, inter alia, to discharge the orders made on 18 May 2021.
The Third Family Report
The interviews for the updating Family report were conducted in late August 2021 and the report was dated 9 November 2021.
By this time, the children had not had any contact or communication with their mother since May 2021.
The mother continued to propose that the children live with her and spend four nights each fortnight with their father.
The father proposed that the children live with him and have supervised time with their mother and that they start spending unsupervised overnight time with her once an independent counsellor assessed that they would be safe with her.
Each parent asserted that the other had psychologically harmed the children or was currently psychologically harming them.
The Family Consultant stated:
17.There do not appear to be any current significant issues related to diagnosed mental illness in relation to either parent, however the ongoing conflict between the parents and the parents’ behaviour may indicate concerns related to dysfunctional personality characteristics.
The report states:
19. Issues identified by the parents:
•[The mother] considers that [the father] has manipulated the children against her and that she has done nothing to harm the children,
•[The father] considers that [the mother] has harmed the children and that he has behaved in a manner that is protective of the children.
20. Issues identified by the Court Child Expert:
•The impact on the children of the significant change in their circumstances, including their lack of time and communication with their mother for over four months,
•The ongoing entrenched conflict between the parents, the psychological harm being caused to the children as a result of this conflict, and the damaging impact of this conflict on the possibility of the parents engaging in a functional co-parenting relationship.
The father spoke to the Family Consultant in relation to the ADVO proceedings. She reported:
40.[The father] said that the children had “no issue” making statements to police about their mother’s behaviour. He acknowledged that the children had positive experiences with their mother, based on the children’s reports, it seems that their negative experiences outnumbered and outweighed the positive. He said that they were aware that they were required to give evidence at court for the AVO proceedings and that [B] was apprehensive about it. He said that the children are aware that the AVO means that, when they go back to school, their mother is not able to pick them up and not able to use others to make contact with them. He said they are aware that it does not prevent them contacting their mother if they choose to.
Both children were interviewed.
In the interview with B, the Family Consultant asked B who was making the rules about where she lived at the moment and B replied “me and C”.
The Family Consultant reported:
48.[B] said that she did not like living with her mother. [B] reported that, on the previous occasions when she had attended Court for interviews with this Court Child Expert/Family Consultant, her mother told her what to say, glared at her if she said the wrong thing, and got angry at her and [C] when they got home after the interviews. [B] said that her mother had told her to say that she [(B)] did not want to spend the Wednesday night in the alternate week with her father. [B] said that she did not comply with what her mother told her to say, and had said that she wanted to continue seeing her father in the alternate week, because she did not get to see her father very much at that time. [B] said that her mother was angry at her afterward and went to her ([the mothers’]) room.
B told the Family Consultant that when she told her mother earlier in the year that she wanted to spend more time with her father, the mother became angry and yelled at her. B said that she had asked her mother to organise for her to see a therapist but her mother told her to wait until after the court proceedings were over.
The Family Consultant reported:
51.When asked to describe her mother, [B] paused and said “I don’t know”. She identified that her mother used to get her “slushies”, but stated that all her memories of her mother are of her mother “yelling at me” and smacking [C] in the car. [B] indicated that it was difficult for her to recall nice things about her mother, but stated “she is my Mum, I love her”. [B] was advised of the description she gave of her mother when she was interviewed in 2020 and was asked if she remembers having positive feelings for her mother and she said “yeah, I guess, a bit”. When asked if she still holds positive feelings or if those feelings have significantly changed, [B] indicated that her feelings changed in 2021 because her mother was yelling at her more and, when she [(B)] asked for help, her mother said no. [B] seems to perceive that her mother did not organise therapy for her because her mother thought that it ([B] seeing a therapist) would not help her ([the mothers’]) case in court.
B told the Family Consultant that she wanted to live with her father but that “obviously” she wanted time with her mother as well, “perhaps a day or two days, slowly building it up”. She said “I obviously want to see my Mum, but I don’t know when”. B was worried that, when she saw her mother, her mother would yell at her but suggested that if her maternal grandparents were present they would be protective. B wanted her mother to apologise to her and assure her that she would not behave angrily or aggressively. She suggested they might have lunch, perhaps next year but that “she is not really ready yet”.
The Family Consultant commented that C presented “in a manner that would be considered young for his age”. She reported:
63.When asked about having changed to living with his father, [C] stated that his mother “wasn’t very nice” and got angry at him when he said “good stuff about my Dad and his family”. [C] said that his mother had told him what to say to this Court Child Expert/Family Consultant when he was previously interviewed, notably, that he should say he wanted to stay living with her. When asked if he remembered what he said to the Court Child Expert in 2020, [C] said he did not remember. He said that his mother had told him to say he wanted to “keep it the same”. [C] was asked if either parent said anything to him after they received the previous Family Report and he said that his father did not say anything, but that his mother got angry at him, because he had said he wanted more time with his father. He said that his mother asked him “do you really?” and tried to pressure him to say otherwise.
The Family Consultant reported:
64.When asked how it came about that he was now living with his father, [C] said “me and my sister got sick of it [their mother’s behaviour]” and that they had decided to move to live with their father. [C] reported that the police came to his father’s home because his mother had called them in response to his father having sent her a message telling her that the children had decided to live with him.
C described his mother as “someone who doesn’t want me to see my Dad forever”.
The Family Consultant reported:
67.When asked if he has any positive memories of his mother, [C] said that he did not remember, but she did take him to see his friends. When advised that, in 2020, he had described his mother as funny and caring, [C] said “I don’t remember saying that”, but he said he “kind of” feels that.
The Family Consultant stated:
71.[C] indicated that living with his father “full time” would be “good”, because “I’ll be more safe”. When asked about the possibility of spending time with his mother, [C] said that he does not really want to spend time with her. [C] acknowledged that he is worried about seeing his mother because he recalls her “getting angry at me all the time”, hitting him, slapping him, pushing him to the couch and throwing bags at him. [C] indicated that, if he were to have a relationship with his mother and feel safe, his mother would have to “stop hitting me and being mean”.
The Family Consultant did not observe the children with either parent because of the ADVO and the COVID lockdown restrictions but she noted:
74.It is noted that [B] and [C] have previously been observed interacting with each of their parents in 2017 and in 2020. On both of these occasions, the children’s interactions with each of their parents appeared to indicate that they had positive meaningful relationships with each parent.
The Family Consultant was provided with Ms T’s affidavit, the notes from the R Hospital and the documents produced by the police including the father’s reports of the mother breaching the ADVO.
Under the heading “Evaluation”, the Family Consultant stated:
82.The current situation for [B] and [C] is now significantly different to the situation they were in at the times of the previous Family Report assessments, in 2017 and 2020. [B] and [C] are now living with their father and have not spent time with their mother for four months (at the time of the interviews). Whilst they continue to appear to have meaningful relationships with their father, their relationships with their mother appear to have endured a significant rupture, which has not yet been repaired. In addition, there are now significant allegations that the children are, or would be, at risk of harm in each parent’s care.
83.In 2020, it seemed that the children were doing well and that the parents were effectively managing the parenting arrangements in accordance with the interim orders. However, at that time, it was noted that the parents continued to hold beliefs, as they had in 2017, that the other parent was somehow undermining their parenting role, perpetuating their dispute.
84.It now seems that the ongoing dispute about parenting arrangements, and the parents’ belief systems associated with that dispute, have resulted in action taken by each of them which may not have been in the children’s best interests. If one considers the situation as it was in 2017, and again in 2020, it seemed realistically conceivable that the parents could have settled the parenting dispute with some kind of arrangement that provided for the children to spend substantial and significant time with each of them. There were no major risk factors that would have impacted parenting arrangements. It is the perpetuation of conflict between the parents, seemingly arising from both parenting and property matters, and the parents’ behaviour associated with this conflict that has caused harm to the children, damaged the children’s relationships with their mother, and marred any possibility of the parents developing an effective co-parenting relationship.
I will set out in full the Family Consultant’s assessment of the mother’s position which I accept. She stated:
85.…[The mother] has often downplayed the importance of [the father’s] role as the children’s father, and she has been unsupportive of the children spending more than four nights a fortnight with their father, initially proposing to decrease that time. It seems that [the mother’s] attitude to [the father] has led her to behave in a manner that has become emotionally abusive of the children, and possibly physically abusive. Whilst the children have indicated that their mother becomes angry about other things as well, it seems that the overarching issue that causes them distress is their mother’s anger and manipulation with regards to the children’s relationships with their father.
86.Whilst it is possible that the children’s perceptions of their mother may have been influenced by their father (discussed below), it seems quite apparent that the children have been emotionally harmed by their mother’s behaviour. It is also quite apparent that [the mother] is unable to recognise or acknowledge this, which indicates that there will be ongoing risk of such harmful behaviour continuing. [The mother] seemed unable to reflect on the possibility that the children have perceived her to be angry at them and unsupportive of their relationships with their father. Whilst she displayed remorse for the children experiencing the ongoing dispute and acrimony between their parents, she was steadfast in her resolve that she has not behaved in any way that she would need to apologise to the children for. Whilst [the mother] indicated an intention to be loving and caring toward the children without any resentment for the statements they have made, [the mother] appears to be quite rigid in her thinking with regard to how she might communicate with the children about what has happened. She believes [the father] has somehow influenced them to make statements about her behaviour, and there seems to be a risk that she will convey this belief to the children, thereby undermining their reality and drawing them further into the conflict between their parents.
87.Further, [the mother’s] attitude to [B’s] reported self-harm and thoughts of suicide also seems rigid and lacking in emotional responsiveness. She seems to be disbelieving that [B] has felt this way, and [B’s] perceives that her mother did not organise therapy for her because it would not look good for [the mother] in court, which both indicate an apparent lack of understanding with regard to [B’s] emotional wellbeing.
88.[The mother] most certainly loves and wants to see, and care for, [B] and [C]. Whilst she recognises the current situation as a significant disruption in her relationships with the children, [the mother] seems to think quite simplistically with regard to how to resolve the situation, proposing to immediately reinstate the previous parenting arrangements. [The mother] does not seem to grasp the significance of what has happened and how the children are feeling. She seems to believe that, as soon as the children see her, everything will be fine. [The mother] does not appear to be considering how to manage the children’s reported fear of her, or what she might need to do to repair her relationships with the children. In addition, if her portrayal of [the father] controlling and manipulating the children is accurate, her proposal for the children to spend four nights a fortnight with him does not seem appropriate.
Similarly, I set out her assessment of the father, which I also accept:
91.…The timing of [the father’s] decision to retain the children does raise some concern about his motivation, having been a matter of weeks prior to the scheduled final hearing of this matter. [The father] has also made several reports to police regarding [the mother] allegedly breaching the AVO, which could be interpreted either as protective behaviour or an attempt to document damaging evidence against [the mother], and potentially an attempt to humiliate and punish [the mother].
92.[The father] most certainly loves [B] and [C] and wants to protect them and ensure their needs are met. He portrays his decision to retain the children as having been in response to their requests. However, there are two concerns regarding his attitude. Firstly, his portrayal of himself as being alienated from the children by [the mother], despite him having meaningful relationships with the children and despite [the mother] complying with the interim orders for the children to spend substantial and significant time with him, is likely to have had an influence on the children’s perceptions over time. Whilst the children may have had their own perceptions of their mother’s attitude toward their father, these would have been reinforced by [the father’s] beliefs about [the mother’s] attitude toward him. Secondly, [the father] seems to continue to hold a high level of hostility toward [the mother] in relation to her living in the family home. This hostility developed initially in response to [the mother’s] actions when commencing these court proceedings in 2016, but is still apparent.
93.… There is some concern that [the father] has been unable to ensure that the children have some form of communication with their mother, however, the existence of the AVO, and the reported possibility of the children having to give evidence at a defended hearing for the AVO, may make this understandable.
The Family Consultant noted that, in 2017 and in 2020, B had positive perceptions of both her parents and that her overall mindset was psychologically healthy. Similarly, she had assessed C as having positive mutual relationships with both his parents. She stated:
97.Both children’s current views are significantly different to their previous views, with them both now wanting to remain living with their father. [B] appears to be conflicted about her relationship with her mother and about what she would like to do in the future in terms of spending time with her mother. It seems that she wants to spend time with her mother, but she is extremely worried about how her mother is going to behave in response to her ([B]) having made the statements she has about her mother and having, in effect, decided to live with her father. [C] did not indicate any desire to spend time with his mother, however this seemed to be directly related to his concern about how she might behave toward him, with him being worried that she will continue to be angry, yell and hit him. [B] made spontaneous statements that she loves her mother, but it is of some concern that both [B] and [C] seemed unable to recall positive elements of their relationships with their mother, which they had previously described in detail.
98.This may be due to the overwhelming impact of their experiences of their mother as being angry and abusive on their overall memories of their mother. It may also be a result of the focus of conversations about their mother having been steered toward their negative experiences of her, both in the context of professional assessments/interventions and interactions with their father. There is some concern that there may be some influence from [the father] as well, possibly intentional, but possibly unintentional, with the messaging from him being that he is protecting them from their abusive mother. Whilst [the father] still claims that [the mother] was alienating him, there was never any indication of that in the children’s presentation during previous assessments. It is the current presentation of the children being unable to spontaneously recall positive memories of their mother that is indicative of him potentially alienating [the mother] from the children.
The Family Consultant said that it is not psychologically healthy for the children to hold such negative perceptions and fears of their mother when it was clear that they had previously had a positive relationship with her. She said that “splitting and rejecting of a parent in the context of a family law dispute can lead to mental health problems for children”.
The husband had shares in GG Pty Ltd and 5 of 10 ordinary shares in HH Pty Ltd. There is no evidence that those shares had any value at January 2007. The business conducted by HH Pty Ltd was fledgling and conducted from home. He had superannuation of $26,812. He had a HECS debt of about $20,000.
The husband had savings which were spent on their wedding.
He was a beneficiary of the estate of his late father who died in 2005. There is a dispute about the husband’s entitlement to the estate and the value of that entitlement.
The husband and wife moved into the Suburb D property when they married.
In August 2007, the wife drew $34,500 from the mortgage over Suburb JJ and those funds were used by HH Pty Ltd to purchase a car.
In October 2007, the wife left her employment and worked for HH Pty Ltd.
In about February 2009, the husband received some $57,000 from the sale of a property owned by the estate of his late father. That money was paid off the Suburb D mortgage.
In February 2009, the wife made a further withdrawal from the Suburb JJ mortgage of $35,500 and those funds were used by HH Pty Ltd.
In May 2009, the mortgage over the Suburb JJ property was refinanced and $134,512 was paid off the mortgage over Suburb D. The mortgage over Suburb JJ increased to $343,300. The Suburb D property was then unencumbered.
B was born in 2009 and the wife ceased her employment with HH Pty Ltd.
In February 2010, they bought a property at Suburb E for $663,100. The husband deposed that the deposit was paid by a redraw on the mortgage over Suburb D and the balance was borrowed. It was intended that the property would be subdivided and developed.
C was born in 2011.
In August 2012, the shares in HH Pty Ltd were sold and the husband received $50,000.
On 30 July 2013, the wife sold the Suburb JJ property for $342,000. There is no evidence that she received anything after the sale expenses were paid and the mortgage discharged.
From 2013, work commenced on the Suburb E property. Although there is a significant dispute about who did what in relation to the project, nothing turns upon it. This was a joint enterprise to which they each contributed according to their abilities, noting that the wife was caring for two very small children. I also note that the husband ceased paid employment and devoted his energy to the project. He received no taxable income in the year ended 30 June 2013; $17,082 the following year and $18,307 in the year ended 30 June 2015.
The development was completed in mid-2015. The property known as F Street, Suburb E was sold for $1,410,000 in December 2015. The parties and the children moved into F Street, Suburb E (“F Street”). Suburb D was rented out.
From the sale, $700,000 was paid off the mortgage now secured over F Street leaving a balance owing of $1,000,000. The mortgage over Suburb D was discharged. The husband deposed that they received a net amount of $548,234 which was deposited in the bank.
The husband deposed that he earned $26,678 in the year ended 30 June 2017. He is unable to say what he earned in 2016. He was unable to produce a tax return for that financial year and said in cross-examination that no return had been lodged. Since F Street was sold in December 2015, capital gains tax (“CGT”) on that sale was liable to be paid in the financial year ended 30 June 2016. There is no evidence of the amount of CGT payable and there is a dispute about how that liability is to be met and by whom. There is no dispute that the wife, as the joint owner of F Street, has lodged her tax return for the financial year ended 30 June 2016 and has paid any CGT liability assessed against her.
The husband stopped making any payments on the F Street mortgage after separation although it is conceded that funds from the joint accounts holding the balance of the proceeds of the sale of F Street were paid into the mortgage account after separation. The evidence does not establish what funds were paid into the mortgage account but it is not asserted that either the wife or the husband used the balance of the funds from their jointly held accounts for her or his own purposes.
On 2 December 2016, an order was made for urgent spousal maintenance for the wife in the sum of $500 per week.
On 2 March 2017, an order was made for interim maintenance for the wife in the sum of $697.74 per week for one year and thereafter in the sum of $500 per week.
The husband paid the spousal maintenance by redrawing from the mortgage account until he stopped paying maintenance in February 2019, maintaining that the order ceased to have effect.
The terms of the order, which are set out below, are quite clear and not open to the interpretation that the payment specified in Order 2 was for a period of one year only.
1.For a period of 12 months from the date of these Orders, the [husband] is to pay spousal maintenance to the [wife] in the sum of $679.74 per week.
2.After the period of 12 months from the date of these Orders, the [husband] shall pay spousal maintenance to the [wife] in the sum of $500 per week.
The husband has failed to comply with those orders since February 2019. The wife has been in receipt of a pension and has borrowed substantially from family members for living costs.
The husband has drawn a total of $66,346 from the mortgage account and paid those funds to the wife by way of spousal maintenance.
At the time of the trial the amount owed pursuant to the mortgage was $798,031.
After separation, the husband received all of the rent from Suburb D.
They each want items of jewellery in relation to which there is a dispute as to ownership.
Issues for Determination
From the narrative above, the following issues arise:
·What was the husband’s entitlement to his late father’s estate?
·What is the husband’s income and earning capacity?
·How should the liability for CGT in relation to the sale of F Street, if there is such a liability, be treated?
·How should the liability for land tax related to Suburb D be treated?
·Who should receive the jewellery?
What was the husband’s entitlement to his late father’s estate?
The husband has five siblings.
The husband’s father’s will was made in 1991 at a time when the husband’s mother was still alive. She pre-deceased her husband.
The will appointed the husband’s sister Ms KK executrix and left the estate to his three younger children, Ms KK, Mr L and the husband as tenants in common in equal shares.
There was no bequest to the oldest sisters, Ms LL and Ms MM or to the oldest brother, Mr NN.
Four of the husband’s five siblings have sworn affidavits in the proceedings.
They depose that, when their father was dying, in January 2005, he called all his children to his bedside and told them that he wanted to talk about his estate. He asked Ms KK to film what he said. She did so.
The wife has called for the production of the original video footage. The husband has refused to produce it.
At the commencement of the trial, the husband sought to rely on an affidavit of a translator, Mr OO, who had translated part of the video into English. The husband conceded that the whole of the video had not been transcribed. I ruled that no evidence relating to the video would be admitted until such time as the original had been produced to the wife and a translation of the whole video had been provided by an agreed single expert.
On the second day of the hearing, counsel for the husband withdrew the affidavit of the translator and told the Court that the husband no longer relied upon the video.
The husband’s father owned properties at Suburb I and at Suburb E. His children have deposed that he told them that he wanted his estate shared equally between all of them. Since the husband’s father has died, the conversations that he had with his children can be admitted into evidence as an exception to the rule against hearsay.
On 6 May 2008, all the siblings executed an agreement in which they all acknowledged that the estate would be equally divided.
In July 2008, the Suburb E property was sold and the net proceeds of $341,500 were equally divided between the siblings, each receiving approximately $57,000. They have not sold the Suburb I property.
On behalf of the wife, it is asserted that because the husband was a one-third beneficiary under the will, and the will was admitted to probate, I should, for the purpose of these proceedings, regard the husband as being entitled to one third of his late father’s estate.
Although the wife has sought the production of the original signed Deed of Family Arrangement, that document has not been produced and neither has there been produced any documents relating to the sale of the estate’s property or any statements from the estate bank account. I accept that the wife is suspicious of the transaction and that she asserts that the arrangement is a sham, she has not demonstrated that to be so.
There is nothing inherently unlikely or unreasonable about the version of events given by the husband and all of his siblings. It is not clear on what basis the wife asserts that it would not have been appropriate for the siblings to agree on an equal distribution between them all of the benefit of their father’s estate.
I am not satisfied that there is any basis to challenge the validity of the disposition of the estate of the husband’s father.
The estate continues to hold a property which was the family home. It is agreed that the value of a one-sixth interest in that property is $216,666.
The siblings have agreed not to sell that property and it is currently occupied by one of them who does not pay rent to the others. However, nothing prevents the husband from asserting his right to sell the property should he choose to do so. His decision not to sell his interest cannot diminish his entitlement.
The value of the husband’s interest in his father’s estate is $216,666.
What is the husband’s income and earning capacity?
The husband deposed:
381.During the years of marriage I earned the following income based on my best recollections and, where available, based on lodged tax returns:
No
Income Year
Income Table
AUD Value
1
2007
(1July 2006 to 30 June 2007)
$64,026
2
2008
(1July 2007 to 30 June 2008)
$85,454.00
3
2009
(1July 2008 to 30 June 2009)
$50,963.00
4
2010
(1July 2009 to 30 June 2010)
$60,808
5
2011
(1July 2010 to 30 June 2011)
$21,716
6
2012
(1July 2011 to 30 June 2012)
$33,829
7
2013
(1July 2012 to 30 June 2013)
$0
8
2014
(1July 2013 to 30 June 2014)
$17,082
9
2015
(1July 2014 to 30 June 2015)
$18,307
10
2016
(1July 2015 to 30 June 2016)
E$unknown
11
2017
(1July 2016 to 30 June 2017)
$26,678
Further, the husband deposed:
586. I have set out in Table G below the income I have earned post separation.
Table G
1
2018
(1 July 2017 to 30 June 2018)
$24,104
2
2019
(1 July 2018 to 30 June 2019)
$27,733
3
2020
(1 July 2019 to 30 June 2020)
E$35,000
587.My income has been low because my business has not been doing very well. My main income source is the rent I receive from the Suburb D property.
The husband’s tax records for the financial years ended 30 June 2018, 2019, 2020 and 2021 were in evidence. Those returns show that the husband’s taxable income was:
2018 $24,104
2019 $27,733
2020 $44,041
2021 $41,819
The husband has filed three Financial Statements in these proceedings.
In a Financial Statement filed on 23 November 2016, he deposed to income by way of wages or salary of $1,538.46 or $80,000 per annum. In addition he deposed to receiving $576 per week, or $29,952 per annum, net rent from Suburb D. The total income to which he deposed was $109,952.
It can immediately be seen that his income as disclosed in that Financial Statement does not accord with that to which he deposed in his affidavit.
The husband filed a second Financial Statement on 9 February 2017. In that document, he deposed to receiving the same income as that deposed in the earlier statement.
In his most recent Financial Statement filed 31 May 2022 he deposed to his income being $576 net rent from Suburb D; $248.01 Family Assistance and $85.75 rent assistance. He also deposed to having a company vehicle which he valued at $50 per week.
It was not until the husband was cross-examined that the true picture of his financial position emerged.
From the husband’s bank statements, some of which had been produced on the Friday before the hearing began on Monday, and some of which were produced in answer to a call during cross-examination, it was clear that the husband received a payment from GG Pty Ltd each fortnight in the sum of $2,338.92. He had received those payments throughout 2018, 2019, 2020, 2021 and 2022. There was no evidence that the payments would not continue.
The husband conceded that the amounts he declared in his tax returns from the financial year ended 30 June 2017 onwards was confined to the rent he received from Suburb D. He did not disclose the payments from GG Pty Ltd because, he said, those funds were loans to him and not income.
The husband’s contention about the funds he received from GG Pty Ltd is not born out by the accounts of GG Pty Ltd or by the husband’s Financial Statement filed 31 May 2022.
In that Financial Statement, the husband deposed that he owed GG Pty Ltd $106,271. If GG Pty Ltd has, on his evidence, been lending the husband some $60,812 per annum since at least 2018, the debt should be in the region of $300,000. There is no explanation for that discrepancy. Further, the Financial Statements of GG Pty Ltd for the years ended 30 June 2018 and 2019 do not show movement in the husband’s loan account in accordance with his evidence. In the 2018 year, the husband’s loan account was in credit $19,665.41. In the 2019 year, the loan account was in debit $16,802.74, a net movement of $36,468, not $60,812 as the husband said was lent.
Since I am satisfied that the husband was paid the money because it can be seen in regular deposits into his bank account, I conclude that the Financial Statements of GG Pty Ltd are not accurate and cannot be relied upon.
There are a number of implications to be drawn from this evidence.
Firstly, it constitutes a material non-disclosure of the husband’s financial position. The husband did not disclose that he was receiving, since 2018, over $60,000 per annum from GG Pty Ltd, whether by way of loan or otherwise. That was a matter he was obliged to disclose.
When instructions were given to Mr QQ in January 2018 to value the shares in GG Pty Ltd, Mr QQ was not told that GG Pty Ltd was lending the husband $60,000 per annum. Mr QQ, in his report dated 28 October 2020 noted, “The expenses of [GG Pty Ltd] do not include a salary for the husband” and further, “[GG Pty Ltd] does not pay wages to the husband for the work he carries out”.
The husband’s child support assessment was made on the basis of his declared taxable income. As a result, in the year ended 30 June 2020, his assessment was $32.83 per month at a time when he was actually receiving $81,879 per annum or $6,823 per month. I do not accept the submission on behalf of the husband that it was always open to the wife to seek to review the assessment because she was not aware of the payments from GG Pty Ltd until the husband was cross-examined. The result was that the husband provided inadequate support for the children compared with the funds he actually received.
I do not accept the submission that the husband will eventually have to repay the funds he asserts have been borrowed from GG Pty Ltd. There is no evidence before me that any such debt is recorded in the Financial Statements of the company.
The husband’s failure to disclose his true financial position constitutes a material non‑disclosure with the consequences attendant upon it as explained in Weir & Weir (1993) FLC 92-338:
It seems to us that once it has been established that there has been a deliberate non-disclosure… then the court should not be unduly cautious about making findings in favour of the innocent party…
The husband’s nephew, Mr W, who deposed that he was the husband’s business partner, despite not owning any shares in the company and not being a director of the company other than for a short period after the husband and the wife separated, deposed that the husband’s work in the business has substantially reduced since November 2016 and again in January 2017. Three other employees have been recruited to take over the work that the husband previously did.
Mr W deposed:
In early 2017, as a result of [the husband] taking more time off work to spend with his children, and also to compensate for the employment of new staff, whom [sic] were employed to take on some of his responsibilities, [the husband] took a pay cut commensurate with the reduction of time he spends at work.
In cross-examination, Mr W said that the husband is paid a wage from GG Pty Ltd which he believed was $50,000 per annum.
Mr W said that he was paid $130,000 per annum because he works full time and the husband does not. Asked whether there was a plan that the husband would resume working full time, Mr W said that he was hoping to have a discussion with the husband “after everything settles”.
In addition to the funds that the husband draws from GG Pty Ltd, he has access to funds provided by Mr W who has given the husband a credit card which he uses, apparently without restriction, and Mr W pays the bill. That arrangement commenced in December 2016 and continues. Mr W paid the rental bond when the husband moved out of the former matrimonial home; he paid three weeks rent in advance for the husband totalling $2,550 and allowed the husband to use his credit card to buy furniture for $12,000. Mr W paid $8,000 for appliances for the husband.
Mr W claims that the husband owes him $145,000 but he said, in cross-examination, that he has never been asked by the husband’s solicitors to provide any evidence that he has advanced those funds to the husband and that “I have a spreadsheet that I have showed [the husband] in the past, but maybe a couple of years ago now”.
The husband has access to about $60,000 per annum from GG Pty Ltd, working on a part time basis. If, as Mr W intimated, the husband were to resume working full time for GG Pty Ltd then he would clearly earn a much greater income. Since Mr W, who claims to be an equal partner in the business is paid $130,000, I can infer that the husband would also be able to earn the same amount if he were to work full time.
How should the liability for CGT in relation to the sale of F Street, if there is such a liability, be treated?
The property at F Street was sold in the 2016 tax year and the liability for CGT arose then. Since the husband and the wife jointly owned the property, they were equally liable to pay the CGT.
It is not disputed that the wife has filed her tax return for the year ended 30 June 2016 and has paid any CGT assessed against her.
The husband deposed that he has not filed his 2016 tax return and that he is unable to do so because, he asserts, the wife has the relevant records and refuses to make them available to him. The wife has been asked for the records and insists that she does not have them.
Annexed to the wife’s affidavit is a letter from the husband’s former solicitors dated 7 December 2016 stating that the husband will be vacating the former matrimonial home and listing the items of contents that he will take with him. Those items included:
9. items in the office (including Laptop, two x computer screens…
10. files from the filing cabinets
11. Filing cabinets
I accept the wife’s evidence that the husband removed the relevant documents from the home when he left.
Having regard to the unreliability of the husband’s evidence in relation to financial matters, and the fact that there is no evidence before me to substantiate the husband’s claim that he still owes an amount for CGT, I am not satisfied that there is a debt payable or, if there is a debt, how much is owed. In his Financial Statement filed 31 May 2022, the husband claims at Item 49 (tax assessed in previous financial years but unpaid) the sum of $55,000. In cross examination he said that was a reference to the CGT. Clearly that assertion was false since the husband has not filed a tax return and, on his own evidence, there has been no assessment of the CGT liability. However, in circumstances where the wife has paid the amount of CGT assessed against her, there can be no justification in treating any CGT assessed against the husband at some future time as a joint debt.
The liability is the husband’s and he should bear it as the wife has born hers.
How should the liability for land tax related to Suburb D be treated?
The husband has received the whole of the income from Suburb D since separation. He has not used his own funds to pay spousal maintenance but has drawn money against the joint mortgage over the former matrimonial home to meet that order. He has failed entirely to comply with the order that he maintain the wife since February 2019, leaving her to apply for a means tested pension.
The husband having received the sole benefit of the rent from the property should pay the land tax.
Who should receive the jewellery?
The jewellery has been valued and described by the valuer. With the exception of sixteen gold coins, the items are of women’s jewellery, bangles, necklaces, ear rings and the like. The husband claims that some of the gold coins were given to him and some to the children but the evidence does not allow me to know which coins might have been his and they have not been valued individually.
The wife will keep the jewellery.
The Balance Sheet
The parties tendered an agreed balance sheet, setting out their respective contentions. The document is reproduced below. I will deal with the disputed items using the item number in the document.
ASSETS No Ownership Description Wife’s Value Husband’s Value 1 Joint F Street, Suburb E $1,650,000 $1,650,000 2 H FF Street, Suburb D $1,380,000 $1,380,000 3 H Interest in the estate of the Late Mr N Uzunlar
H Street, Suburb I NSW$433,333 $216,666 4 H Shareholding in M Pty Ltd Nil Nil 5 Joint Jewellery $27,902 $27,902 6 H Rent bond $3,400 Total $3,494,635 $3,274,568 ADDBACKS No Ownership Description Wife’s Value Husband’s Value 7 H SS Super Fund withdrawals $20,000 Total $20,000 LIABILITIES No Ownership Description Wife’s Value Husband’s Value 8 Joint NAB Home Loan $798,031 $798,031 9 Joint NAB credit card E$5,083 E$7,000 10 W Loans from Mr K for school fees $20,000 11 H Land tax liability E$11,259 Total $823,114 $816,290 SUPERANNUATION No Member Name of Fund & Type of Interest Wife’s Value Husband’s Value 12 W RR Super Fund $13,589 $13,589 13 W SS Super Fund Nil NK 14 H SS Super Fund / Accumulation $69,976 $66,255 Total $83,565 $79,844 NET TOTAL ASSETS (INCLUDING SUPERANNUATION) $2,775,086 $2,538,122 Item 3 – husband’s interest in his father’s estate
I have determined that the value of the interest is $216,666.
Item 7 – husband’s withdrawals from superannuation
The husband withdrew $20,000 from his superannuation in 2020, the first withdrawal of $10,000 on 13 May 2020 and the second on 24 July 2020. The husband paid those funds to Mr W. The withdrawal was not disclosed to the wife and only became apparent in cross‑examination when there was a call for the records of the superannuation fund for the current financial year. Those funds should be regarded as a premature distribution to the husband and added back to his notional property.
Item 9 – joint credit card
The wife concedes that there was a balance owed on the card at separation of $5,083. There is no evidence to support the husband’s assertion of a higher figure. The wife accepts this is a joint debt.
Item 10 – loan from the wife’s brother
The children attended a private school throughout the time the parents lived together. After separation, the husband did not pay the school fees and the wife borrowed $20,000 from her brother to pay those fees.
This is a joint debt and should be repaid from joint funds.
Item 11 – land tax assessed on Suburb D
This is the sole liability of the husband and will be removed from the balance sheet.
Item 14 – husband’s SS Super Fund superannuation
The wife contends for the higher figure which is the current value of the fund. The lower value is the value at 30 June 2021. The fund will be valued at the date of hearing.
I therefore find the assets and liabilities of the parties to be:
ASSETS F Street, Suburb E $1,650,000 FF Street, Suburb D $1,380,000 Interest in father’s estate $216,666 Jewellery $27,902 Rent bond $3,400 Withdrawal from superannuation $20,000 Total $3,297,968 LIABILITIES NAB home loan $798,031 NAB credit card $5,083 Loans from Mr K for school fees $20,000 Total $823,114 NET ASSETS $2,474,854 SUPERANNUATION Wife’s RR Super Fund $13,589 Husband’s SS Super Fund / Accumulation $69,976
Neither party has sought a splitting order in relation to their respective superannuation entitlements which will remain undisturbed.
The parties have net assets of $2,474,854. The wife has or will retain the jewellery valued at $27,902 but will be responsible for the payment of the debt for school fees to her brother. Thus she has net assets of $7,902.
Section 79(2)
Both parties seek a distribution of their assets such that each contends for 65 per cent of the asset pool.
Since they can no longer enjoy their assets together, it is just and equitable that they each have a portion of their matrimonial property.
Contributions
The husband’s initial contribution is more than that of the wife because he contributed the interest in his father’s estate to which he became entitled on his father’s death. During the marriage, they parties benefited from the payment of $57,500 in February 2009 but, because of the decision not to liquidate the real property remaining in the estate, they received no benefit from the balance of the husband’s entitlement which he will retain.
During the marriage, their contributions were equal. They each worked as they were able. The development of the F Street property was a joint project to which they each contributed. I accept that the wife’s contribution was largely as a parent and home maker and that the husband made a greater contribution to their earning but those contributions are different but equal.
After separation, the wife made a greater contribution to the parenting of the children and particularly to their financial support until May 2021. It is the husband’s evidence that he paid a total of $15,060 by way of child support during the period of about four years when the children lived with the wife. That amount represents an average payment over the whole period of about $65 per week.
Since no payments were being made on the mortgage over the home where the wife and children lived, the husband was not contributing to their accommodation, except for the fact that the wife and children occupied the jointly owned home.
Further, although the wife received maintenance until February 2019, the maintenance was not paid from the husband’s income but from drawing down on their joint mortgage.
The husband has been the sole parent and home maker for the children, and responsible for their financial support since May 2021.
Overall, I assess their contributions to be equal, primarily because of the husband’s failure to provide adequate financial support for the children and the fact that, in so far as the husband paid maintenance for the wife, he did so out of jointly owned funds.
Section 75(2)
The wife has not worked since 2009 and it is her evidence that she will need to retrain in order to be employable. When she might be able to undertake any necessary courses to re-skill herself will be dependent upon a number of factors but most particularly upon the level of care that the children require for the next few years.
I can make no finding about the level of income that she might eventually earn.
She will retain her superannuation of $13,589 but will not have access to it for many years as she is 42 years old.
Each party will have to provide accommodation for the children.
The husband will have significant parenting responsibilities and be primarily responsible for their financial support until such time as the wife is able to obtain employment. However, he is capable of earning an income of at least $60,000 per annum working only part time and a greater amount if he chooses to work full time. It is impossible to predict what the husband might be capable of earning if those employees who have been hired to do the work he formerly did are dispensed with and their salaries are saved by the company.
He will retain his superannuation of $69,976 and will have the ability to add to his entitlements because he can work full time and make contributions. He will not have access to the funds for many years. He is now 45 years old.
Taking all of those matters into account, it is not appropriate to make any further adjustment.
Conclusion
The wife will receive 50 per cent of the net assets or $1,237,427. She wishes to retain the F Street property and she should be given the opportunity to do so if she can raise the necessary funds.
The wife will retain net assets of $7,902. The net value of the F Street property is $851,969 giving the wife net assets of $859,871. The husband must pay the wife $377,556 which would leave the wife with a mortgage over F Street which she may be able to service.
If the wife does not retain the F Street property, then both Suburb D and F Street will be sold and the wife will receive 50 per cent of the net proceeds of the sales, less the sum of $7,902 and the husband will receive the balance.
The wife will indemnify the husband in respect of the debt of $20,000 to her brother.
The husband will indemnify the wife in respect of the joint credit card debt.
It is agreed that the Motor Vehicle 1 currently driven by the wife will be transferred to her by GG Pty Ltd. The vehicle has not been included in the balance sheet because there is no evidence of its value.
I certify that the preceding five hundred and nineteen (519) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 8 July 2022
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